( 1 ) THE following judgment of the Court was delivered by Rajeev Gupta, J. : 'to BE HANGED BY NECK, TILL THEY ARE DEAD' is the trial court's verdict against the two accused persons, Phattu Gond and his wife Guddo Bai, which is the subject matter of Criminal Reference No. 7/97, made under Section 366, of the Code of Criminal Procedure, for confirmation of the death sentence; and, Criminal Appeal No. 2193/97 preferred by the two convicted accused persons against their conviction under Section 302, of the Indian Penal Code, with sentence of death recorded by Sessions Judge, Betul in Sessions Trial No. 25/97. This common judgment shall govern the disposal of both those matters i. e. Criminal Reference No. 7/97 and Criminal Appeal No. 2193/97. ( 2 ) THE details of the shocking incident of double murder i. e. of Vishnu and his son Ghammar, as unfolded in the charge-sheet, are that Vishnu (since deceased) and his two other brothers Kishan and Bishan used to reside with their family members separately in their respective houses situated in village Mondawa. Of these three brothers, Kishan was the eldest whereas Bishan was the youngest. Accused Guddo Bai is the daughter of Bishan, younger brother of deceased Vishnu, and accused Phattu being the husband of Guddo Bai, was his son-in-law. About two years prior to the date of incident, Vishnu had purchased some land from Budhu, brother of accused Guddo Bai, in spite of opposition of accused Phattu to the above transaction. As a result of the above transaction, the relations between accused persons Phattu and Guddo Bai on one hand and Vishnu and his sons, on the other, became strained. Accused Phattu, who was resident of village Muchgohan, had come to stay along with his wife Guddo Bai with his father-in-law Bishan, on his invitation. On the fateful night of 'deepawali', which fell on 10-11-96, the two deceased persons; Vishnu and Ghammer, were on their way to the house of Jham Singh for inviting Vastu, son-in-law of Vishnu, to dine with them. As soon as Ghammer reached in front of the house of Channu Gond, accused persons Phattu and his wife Guddo Bai pounced upon him and opened an assault with their respective weapons Gupti and lathi. His father Vishnu tried to intervene, but he too was assaulted by the two accused persons. As soon as Ghammer reached in front of the house of Channu Gond, accused persons Phattu and his wife Guddo Bai pounced upon him and opened an assault with their respective weapons Gupti and lathi. His father Vishnu tried to intervene, but he too was assaulted by the two accused persons. Realising the gravity of the situation Phulwa, Satna Bai and Nallo Bai rushed to the place of occurrence, out of whom Satna Bai too was assaulted by accused Guddo Bai. Thereafter, the accused persons fled away towards their house. Ghammer died an instantaneous death, at the spot itself. Injured Vishnu disclosed to the persons, who had gathered there, that accused Phattu, by means of gupti, and accused Guddo Bai, by means of a lathi, have assaulted him and his son Ghammer. Jhan Singh lodged the First Information Report at Police Station Jhaller, District Betul giving rise to the registration of a case at Crime No. 46/96 for the offence under Sections 302 read with 34 of the Indian Penal Code (for short the IPC ). After observing the necessary formalities, the body of deceased Ghammar was sent for post-mortem examination. The Autopsy Surgeon, vide post-mortem report (Ex. P/15), found two penetrating and two incised wounds on his body and in his opinion, the cause of his death was asphyxia due to injury to left lung. Injured Vishnu, who was sent for medical examination, was found dead by the Doctor at 5. 30 p. m. on 11-11-96. The Autopsy Surgeon, vide post-mortem report (Ex. P/21), found two penetrating and one incised wounds and in his opinion, the cause of his death was asphyxia due to the injury on his chest. In pursuance of the information given by accused Phattu, one gupti was seized from him. After completing the investigation, Police Jhaller charge-sheeted the two accused persons for the commission of the offence under Sections 302 read with 34, of the I. P. C. ( 3 ) BOTH the accused persons abjured their guilt and pleaded false implication to the charges, framed by the trial Court, under Section 302 (for the commission of murder of Ghammer), 302 (for the commission of murder of Vishnu) and in the alternative under Sections 302 read with 34, of the Indian Penal Code. ( 4 ) AT the trial, prosecution examined as many as 12 witnesses, for establishing the charge under section 302, of the I. P. C. on two counts for the commission of murders of Ghammer and Vishnu. The accused persons did not examine any witness in their defence. ( 5 ) THE trial court, relying upon the evidence on record, hold it proved that deceased persons Ghammar and Vishnu had sustained punctured and incised wounds, in the night of 10-11-96, and had died homicidal death. Relying upon the sole eye-witness account of Phulwa (PW/6) and the dying declaration of deceased Vishnu, Ex. P/36, recorded by the Investigation Officer, the trial Court held both the accused persons Phattu and Guddo Bai guilty of commission of murders of deceased Ghammer and Vishnu and, therefore, convicted and sentenced them, as mentioned above. ( 6 ) SHRI U. K. Sharma and Shri P. S. Das, appearing for the two convicts, argued that the trial Court has erred in placing reliance on the eye-witness account of Phulwa (PW/6), in spite of her candid admission in her cross-examination that she had not witnessed the incident. The dying declaration of deceased Vishnu was sought to be attacked on the ground that the witnesses have admitted that after sustaining the injuries Vishnu became unconscious and did not regain his consciousness till he was declared dead. Shri Riaz Mohammad, the learned Govt. Advocate, countering the above double barrel attack, vehemently argued that the evidence on record sufficiently establishes the charge of double murder against the accused persons and as such, the impugned judgment of conviction does not call for any interference. ( 7 ) THE ocular and medical evidence on record leave hardly any scope for any dispute about the homicidal nature of death of deceased persons Ghammar and Vishnu, as a result of the incised and penetrating wounds suffered by them, in the night of 10-11-96. It is precisely on account of this that the homicidal nature of the death of the two deceased persons has remained unchallenged at the trial, as well as before us in this appeal. ( 8 ) A thorough analysis of the trial court's judgment reveals that the conviction of both the accused persons is founded on the evidence of dying declaration (Ex. P/36) of deceased Vishnu, and the eye-witness account of his grand daughter Phulwa (PW/6 ). ( 8 ) A thorough analysis of the trial court's judgment reveals that the conviction of both the accused persons is founded on the evidence of dying declaration (Ex. P/36) of deceased Vishnu, and the eye-witness account of his grand daughter Phulwa (PW/6 ). We propose to deal with the evidence of dying declaration, first. ( 9 ) THE only dying declaration of deceased Vishnu, in writing, is Ex. P/36 which was recorded in the form of his case diary statement under Section 161, of the Code of Criminal Procedure, by the Investigating Officer of the case Ku. Usha Dhakad, (PW/12 ). This statement purports to have been recorded on 11-11-96. From para 33 of the deposition of Ku. Usha Dhakad, (PW/12), we gather that Satna Bai, Jham Singh and other villagers were present at the time of the recording of the statement of Vishnu (Ex. P/36 ). In sharp contrast to the above, Satna Bai (PW 7) categorically stated in para 5 of her deposition that Vishnu, after being brought to his house on a cot, became unconscious and did not regain consciousness, and did not speak with anyone. Mallo Bai, (PW/8), daugher-in-law of deceased Vishnu, also deposed in line with Satna Bai, (PW/7), when she stated in para 7 that Vishnu did not speak with anyone. Thus, the above evidence of Satna Bai (PW 7) and Mallo Bai, (PW 8) creates a serious doubt about the genuineness of the dying declaration (Ex. P. 36) of deceased Vishnu. According to their evidence, Vishnu after being brought to his house did not regain his consciousness, and did not speak to anyone. Thus, the very fact that the contents of dying declaration (Ex. P. 36) were disclosed by deceased Vishnu himself becomes shrouded in mystery. The dying declaration (Ex. P 36) further suffers from the vice of falsehood as it contains a specific averment in regard to accused Guddo Bai that she had assaulted Ghammar and Vishnu by means of a wooden stick, but the Autopsy Surgeon did not find any such injury on the body of either of the deceased person, which could have been caused by means of wooden stick. It is relevant here to mention that on the bodies of the two deceased persons, only penetrating and incised wounds were found. In our considered view, the dying declaration (Ex. It is relevant here to mention that on the bodies of the two deceased persons, only penetrating and incised wounds were found. In our considered view, the dying declaration (Ex. P 36), being impregnated with the above serious infirmities, does not inspire the confidence of the Court, and we do not find it safe to place any reliance on such shaky piece of evidence. ( 10 ) THE reasons mentioned hereinabove, for discarding the recorded dying declaration (Ex. P 36), equally hold good in regard to the oral dying declaration alleged to have been made by deceased Vishnu to Kauli Bai, (PW 5), Manshu (PW 9) and Jham Singh (PW 10 ). It may be mentioned at once that Phulwa, (PW 6), Satna Bai, (PW 7) and Mallo Bai, (PW 8) were the first to reach the place of occurrence. Satna Bai, (PW 7) is the daughter of deceased Vishnu, whereas Mallo Bai, (PW 8) is his daughter-in-law. Both of them used to reside in the same house with the two deceased persons; Ghammar and Vishnu. Both of them claim to have remained by the side of Vishnu, till he was taken to the hospital and they have emphatically stated that deceased Vishnu could not speak to anyone, either at the spot or at his house. Neither Satna Bai, (PW 7) nor Mallo Bai, (PW 8) speak of any dying declaration by deceased Vishnu in regard to his assailant, or that of his son Ghammar. Phulwa, (PW 6) specifically mentions in para 5 of her statement that her grand-father, meaning deceased Vishnu, did not disclose as to who had assaulted him. In this view of the evidence on record, we do not find it safe to place any reliance on the evidence of Kauli (PW 5), Manshu (PW 9) and Jham Singh (PW 10), about the fact of the oral dying declaration of deceased Vishnu. The mere mention of the fact of oral dying declaration of deceased Vishnu in the First Information Report, lodged by Jham Singh (PW 10), does not outweigh the evidence of Satna Bai, (PW 7) and Mallo Bai, (PW 8) that deceased Vishnu did not speak at all. The trial Court has erred in not giving due weight to the evidence of Satna Bai, (PW 7) and Mallo Bai, (PW 8), while considering the evidence in regard to the dying declarations of deceased Vishnu. The trial Court has erred in not giving due weight to the evidence of Satna Bai, (PW 7) and Mallo Bai, (PW 8), while considering the evidence in regard to the dying declarations of deceased Vishnu. ( 11 ) NOW remains the evidence of sole eye-witness Phulwa, (PW 6 ). The fact of her being a child witness aged about 10 years and being the daughter of one of the two deceased Ghammar, mandates a close and cautious scrutiny of her evidence. It goes without saying that it being the night of 'deepawali' and she being a child aged about 10 years, her attention would have been more towards the fire-crackers and the festivities of the occasion. In answer to a question, in para 9 of her cross-examination, she frankly admitted that she had not witnessed the occurrence. Her evidence as an eye-witness also suffers from the vice of falsehood, as she had also stated that accused Guddo Bai had assaulted her father Ghammar and grand-father Vishnu by means of a wooden stick, but as mentioned above, no such injury was found on the body of these two deceased persons. We further gather from her admission, in para 9 of her deposition, that she was playing in the lane along with her friends and her attention was diverted only when her grand-father i. e. Vishnu came in front of the house of her maternal uncle and raised hue and cry. It is the prosecution case itself that Ghammar was assaulted first and thereafter Vishnu tried to intervene and suffered the injuries. If this was the sequence of events, it was just impossible for this witness to have witnessed the actual assault on her father Ghammar. In spite of this, we find that, in para 1 of her deposition, she had tried to become an eye-witness of that part of the incident also, wherein her father Ghammar had sustained injuries. Her deposition, in para 4 of her statement, also runs counter to the prosecution case, as according to her there was sufficient gap of about half an hour between the assault of her father Ghammar and that of her grand-father Vishnu. Her deposition, in para 4 of her statement, also runs counter to the prosecution case, as according to her there was sufficient gap of about half an hour between the assault of her father Ghammar and that of her grand-father Vishnu. The above discrepancies and material infirmities render the evidence of sole eye-witness Phulwa, (PW 6), who happens to be a child witness aged about 10 years and an interested witness to being the daughter of deceased Ghammar and grand daughter of deceased Vishnu, unworthy of credence. We do not find it safe to uphold the conviction of the two appellants on the capital charge of murder, on the above shattered evidence of Phulwa, (PW 6 ). ( 12 ) THOUGH Satna Bai, (PW 7) and Mallo Bai, (PW 8), in their examination-in-chief, claim to have witnessed the incident as eye-witnesses, but their admissions in their cross-examination to the effect that they came out of the house only on being informed by Phulwa (PW 6) disrobe them of their status as eye-witnesses of the incident. According to Phulwa, (PW 6), when her mother Mallo Bai and maternal aunt Satna Bai came there, the accused persons were standing near the house of Channa. This would necessarily mean that by the time of arrival of Satna Bai, (PW 7) and Mallo Bai, (PW 8), the incident of assault on deceased Ghammar and Vishnu was over. ( 13 ) FROM the above re-appreciation of the evidence on record, it emerges out that dying declaration (Ex. P. 36), recorded by the Investigating Officer is not a reliable piece of evidence, as it has come in the evidence that deceased Vishnu, after sustaining the injuries, did not speak to anyone, either at the spot or at his house, or even did not regain his consciousness; for this very reason, the evidence of oral dying declaration of deceased Vishnu to Kauli Bai, (PW 5), Manshu, (PW 9) and Jham Singh (PW 10) also does not hold good; the sole eye-witness account of Phulwa (PW 6), a child witness aged about 10 years and daughter of deceased Ghammar and grand-daughter of deceased Vishnu, in view of the serious infirmities pointed hereinabove, does not inspire confidence of the Court; and, Satna Bai, (PW 7) and Mallo Bai, (PW 8), on their own admissions made in their cross-examination, do not survive as eye-witnesses of the incident of assault. The above glaring infirmities in the evidence, relied upon by the trial Court for recording the appellants' conviction, make it impossible for us to uphold the appellants' conviction, which in our opinion cannot legally be sustained. ( 14 ) IT is rather unfortunate that the serious offence of commission of two murders, of deceased Ghammar and deceased Vishnu, are going unpunished, but in the absence of legal, unimpeachable and cogent evidence in support of the charges against the accused persons, the Court's become helpless and are left with no other option but to acquit the accused persons. ( 15 ) FOR the foregoing reasons, Criminal Appeal No. 2193/97, filed by appellants Phattu and Guddo Bai, succeeds and is hereby allowed. Their conviction under sections 302 read with 34, of the Indian Penal Code, and sentence of death are hereby set aside. They are acquitted of the above charges under sections 302 read with 34, of the I. P. C. In view of the acquittal of the two accused persons, of the charges under sections 302 read with 34, of the Indian Penal Code, the Reference made under section 366, of the Code of Criminal Procedure, for confirmation of the sentence of death, is bound to fail, and is accordingly rejected. ( 16 ) APPELLANTS Phattu Gond and Guddo Bai, in Criminal Appeal No. 2193/97, are reported to be in custody. They be set at liberty forthwith, if not wanted in connection with any other case. Appeal allowed. .